[Redacted], Elliott L.,1 Complainant,v.Kathy McGettigan, Acting Director, Office of Personnel Management, Agency.

Equal Employment Opportunity Commission

Jun 16, 2021

Appeal No. 2020001369 (E.E.O.C. Jun. 16, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Elliott L.,1 Complainant, v. Kathy McGettigan, Acting Director, Office of Personnel Management, Agency. Appeal No. 2020001369 Agency No. 2017027 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final decision dated October 28, 2019, finding no discrimination concerning his complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, we AFFIRM the Agency’s final decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Investigator/Special Agent at the Agency’s National Background Investigation Bureau, Long Beach Field Office (LBFO), California. Complainant’s actual duty station was his domicile, i.e., his home in Alhambra, California. On June 22, 2018, Complainant filed his complaint alleging discrimination based on disability and in reprisal for prior EEO activity when: 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2020001369 2 1. Since May 4, 2017, the Agency has not rendered him a final decision regarding his request for reasonable accommodation; 2. On May 19, 2017, the Agency reopened a background investigation regarding his security clearance; and 3. On May 30, 2017, he was placed on paid administrative leave until further notice. After completion of the investigation of the complaint, Complainant requested a final Agency decision without a hearing before an EEOC Administrative Judge (AJ). The Agency issued its final Agency decision concluding that it asserted legitimate, nondiscriminatory reasons for its action, which Complainant failed to rebut. As a Field Investigator, Complainant worked from his home in Alhambra and was assigned to cases conducting background investigations for security clearance for applicants for federal government employment around Alhambra. His duties involved: conducting interviews with schools, police departments, family members, and neighbors; and submitting a report of his investigation and findings. Complainant and Field Investigators worked independently without their supervisor’s supervision on a daily basis. On May 4, 2017, Complainant submitted a request for an accommodation for his disability to his Area Chief (AC). Complainant indicated that he was a veteran with disability and, thus, needed an adjustment and/or change at work. Complainant asked that he be: allowed to report to work to the Long Beach Field Office (LBFO) on a fixed daily basis (Monday - Friday) and for an indefinite/permanent period of time. In other words, instead of working from home, I will work from the office and conduct my fieldwork as usual. The next day, on May 5, 2017, the AC responded to Complainant’s request by asking for his medical documentation and meanwhile allowed him to report to work to the LBFO. Complainant was informed, in part, that: his duty station, which was his domicile, would not change; since he would be reporting to the LBFO, his government vehicle, that he used for conducting his investigation, would be parked in the LBFO and he could use his personal vehicle to report to/from the LBFO; he would coordinate his office hours (days and times) with his supervisor; and his driving in to the LBFO to start and end his workdays would not be counted as part of his official work hours. On May 10, 2017, Complainant and the AC had a meeting regarding the requested accommodation. At that time, Complainant provided a letter from a Veterans Affairs staff clinical psychologist dated May 9, 2017. Therein, the psychologist indicated that Complainant had behavioral health issues and that working from the LBFO, rather than from his home office, would increase contact and interaction with fellow coworkers and colleagues as well as having face-to-face access to his direct supervisor. 2020001369 3 On May 18, 2017, the AC, finding the May 9, 2017 letter insufficiently related to Complainant’s medical condition or limitations, requested additional medical documentation identifying any restrictions, the anticipated duration of any such restrictions so that the Agency could clearly identify the need and to fully explore all accommodation options. Complainant was instructed to provide this documentation within 15 calendar days of this letter. Complainant failed to do so. Complainant was on Family Medical Leave Act (FMLA) for six weeks for the birth of his child from July to August 2017. While he was on FMLA, Complainant emailed the Human Resources (HR) Specialist on August 23, 2017, requesting to continue his accommodation process. Therein, Complainant indicated that he was on FMLA leave and would return to work on September 5, 2017. Complainant provided a letter dated June 22, 2017, from the psychologist indicating that he suffered from anxiety and depression related symptoms, which were permanent, as a result of his military service and these symptoms were exacerbated as a result of his current employment in combination with working independently in isolation and accounting for his work time, i.e., report-writing and travel time in the field. The psychologist indicated that working from the LBFO would prevent the isolation and limited contact with others. On August 24, 2017, the HR Specialist confirmed the receipt of Complainant’s request and referred the matter to the Agency’s contract physician. The HR Specialist also asked Complainant to sign a medical release form to permit the physician to make contact with Complainant’s physician. Complainant signed the form but noted the release did not include the release of his medical records. The record indicates that on May 19, 2017, Complainant’s background investigation was reopened, and his security clearance was suspended. Complainant was placed on administrative leave on May 30, 2017, during the investigation of the subject matter. After the investigation, Complainant’s security clearance was reinstated on July 14, 2017. Complainant filed the instant appeal. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9 § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law"). Regarding his request for reasonable accommodation, we will assume without deciding (for the purposes of this decision) that Complainant is an individual with a disability. 2020001369 4 After a review of the record, including his appeal brief, we find that Complainant failed to show that he was denied a reasonable accommodation. On May 4, 2017, Complainant requested to report to the LBFO as an accommodation for his disability. Next day, the AC offered him to report to the LBFO as requested and asked him to provide medical documentation to support his request. We find that Complainant failed to provide sufficient medical documentation (as requested) to justify an accommodation. We find that Complainant failed to show he provided sufficient medical documentation to support his request (which was apparently to report to the office before leaving to do investigations). Furthermore, it appears that Complainant was allowed to report to the office but that he declined to do so. Although Complainant asks for a different accommodation on appeal (reassignment), this accommodation request is not at issue in this appeal as it was not one of the claims in the complaint. Regarding the security clearance claim, the Commission notes that it does not have jurisdiction to review the substance of an Agency’s security clearance determination. Waneta F. v. Department of Homeland Security, EEOC Appeal No. 2019005442 (Jan. 22, 2021) (citations omitted). There is no indication that the reopening of the background investigation of Complainant by the Agency was motivated by disability or reprisal. Rather, the investigation was reopened due to Complainant’s alleged conduct. Regarding his administrative leave, the record reveals that Complainant was placed on administrative leave on May 30, 2017, because he was not permitted to work in the field without his active security clearance. Thus, we find that Complainant failed to show that the Agency’s articulated reason was a mere pretext for discrimination. Based on the foregoing, we find that Complainant has failed to show that the Agency’s action was motivated by discrimination as he alleged. CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. 2020001369 5 A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. 2020001369 6 The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations June 16, 2021 Date